Gary Fish Co. v. Leisure

• Court: Indiana Appellate Court
• Writing for the Court: ACHOR
• Citation: Gary Fish Co. v. Leisure, 102 N.E.2d 209, 122 Ind.App. 190 (Ind. App. 1951)
• Decision Date: 03 December 1951
• Docket Number: No. 18142,18142
• Parties: GARY FISH CO. v. LEISURE et al.

Page 209

102 N.E.2d 209

122 Ind.App. 190

GARY FISH CO. v. LEISURE et al.

No. 18142.

Appellate Court of Indiana, in Banc.

Dec. 3, 1951.

Strom & Spangler and George Cohan, Gary, for appellant.

Richard P. Tinkham and James H. Pankow, Hammond, for appellees.

ACHOR, Judge.

This was an action by appellee to recover damages for personal injuries sustained by him as a result of a collision with one of appellant's trucks. To this cause of action appellant filed a specific denial and also affirmative paragraphs of answer, setting up the issue that the appellee had accepted compensation from the Standard Oil Company under the Workmen's Compensation Act. Burns' Ann.St. § 40-1201 et seq.

The appellant also filed a cross-complaint against the appellees, Herbert Leisure, Marion Davis and Standard Oil Company in two paragraphs. The first was to recover the amounts for which the appellant, Gary Fish Company, became liable pursuant to an award entered by the Industrial Board of the State of Indiana, by reason of the death of its employee, Benjamin Leisure. The second was to recover for the damage to the truck and its contents. Appellant alleged that the death of its employee was due to the negligence of appellees Leisure and Davis while driving trucks for the appellee Standard Oil Company at the time of the collision in controversy.

The jury returned a verdict for appellee Leisure in the sum of $30,000. Also, in accordance with an instruction from the court, it returned a verdict for all appellees against the appellant on paragraph one of its cross-complaint. Judgment was entered accordingly. The following errors were relied upon by appellant in his motion for a new trial and are presented to this court on appeal:

The first alleged error was that the court, over the objection of appellant, permitted Mr. Kacena, a third party, to testify that he had been paid for damages to his 'automobile which were incurred in this collision.' Appellant's objection to the admission of this testimony was as follows: 'Mr. Strom: The defendant objects, the first reason being if the witness has been paid by either the Standard Oil Company or the Gary Fish Company, or both of them, he should not be, is not prejudiced and it is not necessary to bring that point out.'

It is argued by appellant that the evidence was not admissible for two reasons: first, that this evidence was injected as proving an admission of liability on the part of appellant in favor of Kacena for the damages sustained to his automobile. This is not the grounds upon which appellant based his objection to the court below, and by well-established rules he cannot ask for reversal by this court upon different grounds. Fame Laundry Co. of Indiana v. Henry, 1924, 195 Ind. 453, 461, 144 N.E. 545.

Appellant's second contention against the admission of the evidence was that it was not admissible for the purpose of showing the bias and prejudice of the witness. This court recognizes that said issue has not been determined by Indiana Courts and that there is a marked conflict in the rulings of other states on that issue. However, the objection made by the appellant in the court below was so indefinite that we cannot say that the trial court was given a fair opportunity to rule upon the objection. Therefore, we are not justified in expressing an opinion on that issue as now presented on appeal. The essential part of the objection is 'If the witness had been paid he should not be, is not prejudiced, and it is not necessary to bring that point out.'

The rule of law regarding the sufficiency of objections to the admission of evidence is well established. As stated in Fame Laundry Co. of Indiana v. Henry, supra, 195 Ind. at page 461, 144 N.E. at page 547, 'When objections are made to the admission of evidence, the grounds of the objection must be fully and definitely stated. Indianapolis Traction, etc., Co. v. Howard (1920), 190 Ind. 97, 128 N.E. 35; Underhill v. State (1921), 190 Ind. 558, 130 N.E. 225; Marietta Glass [Mfg.] Co. v. Pruitt (1913), 180 Ind. 434, 102 N.E. 369.' See also 64 C.J., § 203(a), p. 180. The reasons for the rule are: First, that the court under the pressure of trial may intelligently rule on the objection, and second, that counsel for the opposing party may have the opportunity to obviate the objection if well taken. 64 C.J., § 203(a), p. 183.

No specific ground or rule of law governing the admissibility of the particular evidence sought to be elicited from the witness was incorporated in the objection. We are constrained to hold that the objection was fatally defective in that it failed to 'fully and definitely' state the grounds on which it was based, and that the trial court committed no error in permitting the question to be answered.

The second error relied upon by appellant was the admission of the picture of the Kacena automobile which appellant's truck struck and severely damaged after first colliding with the two Standard Oil Company trucks. Appellant's objection was based upon the fact that Kacena was not a party to the action and that the evidence was outside the issues. The Kacena car was in the path followed by the appellant's truck, immediately following the impact with the trucks driven by appellees Davis and Leisure. The extent of the damage to the Kacena car was evidence of the speed of appellant's truck. The photograph was germane as to both of these circumstances and issues and was, therefore, admissible. Action v. Lowery, 1941, 109 Ind.App. 581, 34 N.E.2d 972; Drohan and Carmell, as Trustees v. Standard Oil Company, a corporation, 7 Cir. 1948, 168 F.2d 761. Furthermore, any issue as to the admission of the photograph was waived by the offer and admission of a second photo of the car with 'no objection.'

The third error relied upon by appellant was the exclusion during cross-examination of conversations between appellees Leisure and Mr. Price of the Standard Oil Company regarding a loan agreement for the payment of Workmen's Compensation pending prosecution of this action.

At the conclusion of appellees' case in chief, the court stated that he believed he had committed error in sustaining the objection to the question in controversy and, after announcing his decision regarding such error, inquired of appellant's counsel, 'Do you gentlemen wish to call the defendant Leisure for cross-examination?' to which appellant's counsel replied, 'We haven't decided.' Appellant then 'reserved the right to cross-examine plaintiff (Leisure) during its case.' Appellant presented and rested his case without calling Leisure for further cross-examination.

Without deciding the issue as to the admissibility of the oral testimony in controversy it does seen apparent that error, if any, was waived by appellant. As stated in Lowe's Revision of Works' Practice, § 46.8: 'Giving a party a full opportunity before the conclusion of the trial to introduce evidence which has once been offered and excluded will...